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A Historical and Juridical Study of the Philippine Bill of Rights

By Joaquin G Bernas SJ

” What people want, above everything, is a guaranty of those fundamental human rights which Americans
hold to be the natural and inalienable birthright of the individual but which under Spanish denomination
in the Philippines were shamefully invaded and ruthlessly trampled upon”


Prior to the arrival of the Americans in 1898, constitutional history- British and American constitutional
history, did not exist in the Philippines.

Spanish constitutional guarantees of civil and political rights were not introduced in the Philippines and
there was no opportunity for an indigenous evolution of basic protections against oppression by

As a result, there arose a resolute struggle to gain fundamental political and civil liberties from Spanish
authorities through both peaceful and violent means.

These aspirations were very basic and like the terms of the English Magna Carta, were the counterparts
of very definite civil and political wrongs and demanded redress.

Said developments may be divided into two distinct chronologically overlapping phases:

1. The Propaganda Movement

2. The Secessionist Movement

The Propaganda Movement

-extended roughly from the middle to the 19th century to 1892.

- The Propaganda Movement is a period of peaceful campaigning made by writers and journalists writing
both in the Philippines and in the European cities.

Filipinos who denominated the scene:

Marcelo H del Pilar

Graciano Lopez-Jaena

Jose Rizal

Mariano Ponce

(What did the four do to campaign?)

-Primary medium, La Solidaridad, a newspaper published fortnightly by Filipinos in Barcelona

- Although the most far reaching effect ws accomplished by the publication of Rizal’s NOli Me Tangere and
El Filibusterismo

- Aim: assimilation/to take into mind and thoroughly understand

- Demand: Not outright secession from Spain but the extension to Filipinos of those rights enjoyed by the
Spaniards under the Spanish Constitution.

(Can you think of possible demands?)

1. The inviolability of both person and property, among others. Commented [AC1]: Secure from violation

2. End to arbitrary action by officialdom, particularly the Guardia Civil and an end to arbitrary detention
and banishment of citizens.

3. Freedom of speech and of the press

4. Freedom of Association, and the right to petition to government for redress of grievances.

5. Right to liberty of conscience

6. Freedom of worship

7. Freedom to Choose a Profession

8. The Right to an Opportunity for Education

9. Finally, they clamored for an end to the abuses of religious corporations

- Absence of fundamental substantive protection of both personal and property rights was aggravated by
an inadequate judicial system.

- Spanish authorities had already established in the Philippines a fairly elaborate hierarchy of courts, a
hierarchy whose basic structure has been strengthened and preserved until the present.

Lowest Level of Hierarchy: Justice of the peace or Municipal Court

-Has the jurisdiction over petty criminal and civil cases within a pueblo or town

-Prior to May 1885, function of the judge was exercised by the gobernadorcillo who was also the local
executive (No separation of Power)

- A royal decree in 1890 established in each town in the Philippines the office of “Juez de Pax” for the
purpose of administering peace and justice to the inhabitants of the pueblos yet conditions were not
much improved as appointment to the office was frequently based NOT on ability but on money and
political influence. And since the compensation was meager, the result frequently was corruption and Commented [AC2]: Lacking/deficient
miscarriage of justice.
Intermediate Level of Hierarchy: Court of First Instance of District Court

-Has the jurisdiction over civil and criminal cases within provinces and districts

-Function of judge of this court was exercised by the alcalde mayor who was also the chied executive of
the province. Thus, an appeal against the order of the official had to be made to him as judge.

- Not until June 30 1886, that the office of judge was separated from that of provincial governor.

Top Level of Hierarchy: Three Collegiate Supreme Courts

a. The Audencia Territorial de Manila

b. The Audencia Territorial de Cebu

c. The Audencia Territorial de Vigan

- The appellate civil jurisdiction of the Manila Court is extended over the entire Archipelago; NEITHER the
Cebu nor the Vigan Court had civil jurisdiction.

- The appellate criminal jurisdiction was divided among the three with:

Southern Luzon:Manila Court

Northern Luzon:Vigan Court

Visayas and Mindanao:Cebu Court

- Appeal from all three Audencias could be made in certain cases to the Supreme Court of Spain.

Structural defects were further aggravated by the inadequacy of procedural law

-The Spanish Constitutions of 1869 and 1876 contained some protection for the accused.

“The overseas provinces shall be governed by special laws”- Article 88 of the 1876 Constitution. However,
special laws decreed for the Philippines did not carry to the Islands the benefits of the Spanish

Old Code of Criminal Procedure- 998 Sections, did not even contain protection against arbitrart arrest and
indefinite detention without trial. Criminal cases were not terminated until reviewed by the Audencia.

- A person accused of a crime could be required to testify and his silence raised a presumption of guilt.

- One reform introduced by the American Military Governor was the issuance on April 23, 1900 of General
Order No 58 which became the Code of Criminal Procedure which introduced a just and speedy system of
criminal procedure.
The Successionist Movement

- Despite the precious movement, Spain did not listen.

- New Medium: The Katipunan- a secret society found by Andres Bonifacio on July 7, 1892. It served as
the military arm of the secessionist movement

- Principal objective: To create an independend Filipino nation by armed revolution

On August 1886, the first violent manifestation of the idea of separation was supplied by the Katipunan.

On May 31, 1897, a republican government was established in Biak-na-Bato

On November 1, 1897, the Provisional Constitution of the Republic of the Philippines or the Constitution
of Biak-na-Bato was unanimously adopted. It consists of 32 articles and is generally attributed to the
lawyers Felix Ferrer and Isabelo Artacho. It is almost a carbon copy of the Cuban constitution of Jimaguayu.
It only differs with four articles added by the two which formed the constitutions’ Bill of Rights namely
Articles XXII, XXIII, XXIV, and XXV.

On December 16, 1897, a temporary reconciliation with the Spanish government was effected through
the efforts of Pedro Paterno. The result was the signing of the Pact of Biak-na-Bato whereby in exchange
for monetary indemnity for the Filipino men in arms and for promised reforms, the Filipino leaders agreed
to cease fighting and guaranteed peace for at least three years,

On December 27, 1897, Gen Emilio Aguinaldo, who replaced BOnifacio as the leader of the Katipunan left
the Philippines together with the other leaders for Hongkong.

Aguinaldo tasked Don Mariano Ponce, a member of the Revolutionary Council to prepare another draft
for a provisional constitution. Ponce modeled his work after the republican program of Pi and Margall and
after some Spanish Constitutions which contained a bill of rights in rudimentary form. The Bill of Rights
were found on Articles 32-37.

However, Ponce’s constitution was never promulgated.

On June 23, 1898, the dictatorship Aguinaldo firmed, was terminated and Aguinaldo assumed the title of
“President of the Revolutionary Government”

By late June, the relations between the American troops and the Filipino forces had become precarious. Commented [AC3]: Depending on the will or pleasure of
On September 15, 1898, at the Barasoain Church, the Revolutionary Congress was inaugurated. 43 another
lawyers, 18 physicians, 7 businessmen, 4 agriculturists, 3 soldiers, 3 educators, 2 engineers, 2 painters and
1 priest formed the Congress. Felipe Calderon, with his committee began formulating a constitutional
draft that would be submitted to Congress.

Three drafts were submitted for consideration

1. Paterno’s

Rights Contained:
Equality of rights for Spanish subjects resident in Spain and in the Islands, extension to the Philippines of
the guarantees of the Spanish Constitution protecting freedom of the press and of association, the right
of petition, freedom of religion, academic freedom, freedom to pursue any profession and security of
property and of domicile

2. Mabini’s

Rights Contained:

Contained a very detailed Bill of Rights. It covered protection of property from arbitrary confiscation,
reserving to the government the power of eminent domain, freedom of religious belief and worship,
limited by the requirement of a license for public manifestations of religion, freedom of speech and of the
press, right of peaceful petition for the redress of grievances, freedom to form associations but requiring
official approval of their statutes and prohibiting the existence of religious orders whose Superiors
General were under the immediate authority of the Pope, due process in criminal prosecutions as
supported by an equivalent of the right to a writ of habeas corpus, security of domicile and of papers and
effects from arbitrary searches and seizures.

2. Calderon’s- the one approved, became the Malolos Constitution

Provisions of Bill of Rights were in the main, literal copies of articles of the Spanish Constitution

Rights Contained:

Freedom of religion, freedom from arbitrary arrests and imprisonment supported by an equivalent of the
right to a writ of habeas corpus, security of domicile and of papers and effects from arbitrary searches
and seizures, inviolability of correspondence, freedom to choose one’s domicile, due process in criminal
prosecutions, security of property with the reservation of the government’s right of eminent domain,
prohibition of the collection of taxes not lawfully prescribed, free exercise of civil and political rights,
freedom of expression, freedom of association, right of peaceful petition for the redress of grievances,
free popular education, freedom to establish schools, guarantee against banishment, prohibition of trial
under special laws, prohibition of the establishment of rights of primogeniture, prohibition of the Commented [AC4]: The state of being the firstborn of the
entailment of property, prohibition of the acceptance of foreign honors, decorations or titles of nobility children of same parents
and of the granting of such honors by the Republic.

Article 28

“The enumeration of the rights granted in this title does not imply the prohibition of any others not
expressly stated”

Of all, only his proposals on the Catholic religion were rejected.

The American Period

On February 2, 1900, the First Philippine Commission’s report to the American President, the Commission
said that what the Filipino people wanted above all was a “guaranty of those fundamental human rights
which Americans hold to be the natural and inalienable birthright of the individual but which under
Spanish denomination in the Philippines were shamefully invaded and ruthlessly trampled upon”.

President Schurman’s response was embodies in his Instruction of April 7, 1900. This response was
characterized as the Magna Charta of the Philippines and as a worthy rival of the Laws of the Indies.

The inviolable rules which were contained in the said response were almost literal reproductions of the
first to ninth amendments and the thirteenth amendment of the US Constitution. These were
subsequently re-enacted in almost identical terms in the Philippine Bull of 1902 and the Philippine
Autonomy Act of 1916, popularly known as the Jones Law.

These rights were extended to the Philippines was explained in Kepner vs US. The Philippine judiciary
faithfully followed the prescription of Justice Day.
Kepner vs US

195 US 100 (1904)


Thomas E. Kepner, a practicing lawyer in the city of Manila, Philippine Islands, was charged with a violation
of the law in the embezzlement of the funds of his client (estafa). Upon trial, in November, 1901, in the
court of first instance, without a jury, he was acquitted, it being the judgment of the court that he was
not guilty of the offense charged. Upon appellate proceedings by the United States to the Supreme Court
of the Philippine Islands, the judgment of the court of first instance, finding the accused not guilty, was
reversed, and Kepner was found guilty and sentenced to a term of imprisonment of one year, eight
months and twenty-one days, suspended from any public office or place of trust, and deprived of the right
of suffrage.

Error was assigned in the appellate court upon the ground that the accused had been put in jeopardy a
second time by the appellate proceedings, in violation of the law against putting a person twice in
jeopardy for the same offense, and contrary to the Constitution of the United States.

The appeal was taken by the United States on December 20, 1901. A motion to dismiss the appeal was
made on January 1, 1902. The motion was finally overruled on October 11, 1902; the final decision in the
case, finding the accused guilty and imposing the sentence, was rendered on December 3, 1902.


"That no person shall be deprived of life, liberty or property without due process of law; that private
property shall not be taken for public use without just compensation; that, in all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of
the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defence; that excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall
be put twice in jeopardy for the same offence or be compelled in any criminal case to be a witness against
himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that
neither slavery nor involuntary servitude shall exist except as a punishment for crime; that no bill of
attainer or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech
or of the press or of the rights of the people to peaceably assemble and petition the government for a
redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the
free exercise thereof, and that the free exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be allowed."

These principles were not taken from the Spanish law; they were carefully collated from our own
Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life
and liberty. It is not necessary to determine in this case whether the jeopardy provision in the Bill of Rights
would have become part of the law of the islands without Congressional legislation. The power of
Congress to make rules and regulations for territory incorporated in or owned by the United States is
settled by an unbroken line of decisions of this court, and is no longer open to question.
In a different era, The Universal Declaration of Human Rights (UDHR) was approved and signed by
numerous countries as a move to forward human rights. Drafted by representatives with different legal
and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United
Nations General Assembly in Paris on 10 December 1948 by General Assembly resolution 217 A (III) as a
common standard of achievements for all peoples and all nations. It sets out, for the first time,
fundamental human rights to be universally protected.

According to the United Nations, human rights are inherent to all human beings, regardless of
race, sex, nationality, ethnicity, language, religion, or any other status. Rene V Sarmiento, on the other
hand, defines human rights as the aggregate of privileges, claims, benefits, entitlements and moral
guarantees that pertain to man because of his humanity. Meanwhile, Chilean lawyer Jose Zalaquett wrote
that human rights are regarded as a system of values or elements which are inherent to human dignity.

In the case of Simon Jr. vs Commission of Human Rights, it is held that:

“Human rights are the basic rights which inhere in man by virtue of his humanity and are
the same in all parts of the world. Human rights include civil rights (right to life, liberty and
property; freedom of speech, of the press, of religion, academic freedom; rights of the accused to
due process of law), political rights (right to elect public officials, to be elected to public office,
and to form political associations and engage in politics), social rights (right to education,
employment and social services. Human rights are entitlements that inhere in the individual person
from the sheer fact of his humanity because they are inherent, human rights are not granted by the
State but can only be recognized and protected by it. Human rights includes all the civil, political,
economic, social and cultural rights defined in the Universal Declaration of Human Rights.
Human rights are rights that pertain to man simply because he is human. They are part of his
natural birth, right, innate and inalienable. “Civil rights” is defined as those that belong to every
citizen and are not connected with the organization or administration of the government.
“Political rights” is defined as those rights to participate, directly or indirectly, in the
establishment or administration of the government. Hence, the said Commission focuses on severe
cases of human rights violations, such as right of political detainees, treatment of prisoners, fair
and public trials etc. Therefore, Commission on Human Rights can cite or hold any person in
direct or indirect contempt but not order them to desist.”